namely the General Counsel at Adobe, comes a short, smart polemic on what law schools can do to help students navigate a rapidly changing marketplace for their new services.
As the examples (including NU’s) indicate, there is progress being made. Here’s to a half full glass ‘o innovation!
Building on the “specialization” posts I referenced recently, another interesting post by Prof. Campbell of Peking Law. How can I not agree with his analysis when he references Northwestern Law’s admissions process in particular?
I certainly associate myself with his observations about the role and pertinence of these key lawyer competencies. Where I might quibble just a bit in his observation, referencing NYU in particular (although he might as well have referenced other law schools, including ours), that there is limited value added by the work within law school to develop these competencies. I do believe there is more value that meets the eye. Emphasis on developing business skills is growing and I think that is a fruitful development indeed.
Here is one quotation which frames the basic argument:
“[L]aw practice has changed fundamentally since Langdell reformed law teaching. Today law practice is highly specialized, and rather than roaming across the field of the common law modern lawyers tend to their own narrow patch of expertise. Today, no one can master all the ‘dogma’ that is routinely applied by lawyers in the major law firms or major government agencies. There is just too much. Whatever marks the commonality of the practice of law – and should therefore play into the training of lawyers – it’s not applying the same technical legal expertise on a day to day basis.
Neither does the background knowledge or skill reflected in ‘thinking like a lawyer’ provide a sufficient answer to training lawyers. As practice has evolved, legal reasoning remains important – much as putting is important to golf – but it’s far from the whole game.”
The “quandary,” Campbell notes, is how law schools ought to best train these students who will encounter a highly specialized practice. I have some thoughts on that (as he and others certainly do). More on that in a future post. But, for now, note the important implication he draws from these observations about the trends toward specialization and commodification of legal services:
“As legal practice becomes more and more specialized, the possibilities for non-lawyer specialists to take on roles that used to belong to lawyers become ever greater. If a lawyer does not actually need broad based legal training to proved the specialized service, competitors who are not lawyers can enter the market unless the market is protected. On the corporate side, where regulatory barriers are largely papered over by having general counsel in between the law workers and the non-lawyer clients, we can already see a number of these – e-discovery specialists, document review specialists, litigation consultants, merger and acquisitions consultants, and on and on. Other countries, including the UK, have opened the doors to such providers, and some states have relaxed or are looking at relaxing barriers on the consumer side of the market. I think the range of non-lawyer specialists that compete for law work will only become more extensive and more elite over time.”
This is an enormous issue, of course, and one that is best framed around both positive and normative analyses. I might quibble with the description as regulatory barriers being “largely papered over” — claims regarding the unauthorized practice of law don’t always fail, and there has been controversy stirred up by individuals and entities entering the so-called traditional lawyer space with various services (litigation involving Legal Zoom, for example, continues in various state courts). But the general point, that specialization in legal practice has and can drive legal generalists out of key parts of the market, seems surely right as a descriptive matter. The normative implications, to say, the obvious are controversial and fascinating.
Conversations about medium and large-sized change in legal education have mostly been framed around comments by deans and law professors — with an occasional foray into this debate by prominent public officials, including President Obama, Justices Alito, Ginsburg, and Scalia and other elder statespeople who are furnished ink by the barrel (old-timers will get the journalism reference here!).
So, in the main, the conversation about reform has a typically top-down quality. We in the legal academy talk about the imperative of forging change; prominent outsiders chime in with suggestions; and the professors (and perhaps especially the deans) quarrel over the content of such changes.
But we should think in earnest about the ways in which the law school reform debate should be equally a bottom-up endeavor. The folks who have unique perspectives on reform are those who in the practice (I mean “of law” but would also include anything following the “of” about which law is pertinent and important) and those entering into this practice as law students. Reform agendas should be framed in no small part around what gaps have emerged in the post-graduate skill-building of young lawyers. Bottom line: “What ought they to know and what ought they to be able to do when they join the profession as lawyers?” Every other question ought to be secondary to this one. And every other key matter of interest and concern to academicians in internal debates — including the critical and controversial matters of cost, debt, and value — should be viewed in the service of best answering this question. For this question undergirds debates over curriculum, the balance between theory and experience, who should teach law students, and even the overarching economic structure of the enterprise.
Moreover, practicing lawyers and even to some degree mid-stream law students, will have a perspective on this question that, despite all our best efforts as profs and deans, we will lack. So, my tiny point here is simply that the change engineers are, to a greater extent than we inside the tent typically appreciate, those who are engaged delay in the practice of law and the performance of legal (incl law + business) tasks and skills. “Let’s see what the lawyers think” is a convenient knock off question, when our own debates tail off or hit an impasse. But this tactic goes about the inquiry in a too truncated way. The inquiry should begin, perhaps paradoxically, from a starting point which inevitably counsels modesty about our comparative advantage in answering the key questions. Again: What should lawyers know? And how should we in law schools contribute to this knowledge? The practical architecture of major reform should reflect a more bottom-up focus, a more humble sense of what we do and do not know.
Innovation begins with engagement.
One suspects that the ABA Council is taking a deep breath, and perhaps also a victory lap, after several years in which it reviewed existing standards and made some meaningful reforms. Attention rightly shifts to the implementation of these reforms and, one hopes, to working constructively with law schools to best manage the burdens (and also the benefits) of these new standards.
But we should not lose sight of the fact that there is much more constructive work to do. The multiyear process just completed was described as a comprehensive one. Yet, the most comprehensive approach to reform would look freshly at all the rules in toto, asking simultaneously the questions: What is the fundamental purpose of law school regulation? How do the standards maintain public confidence in legal education while encouraging law schools to revisit their basic instructional and economic models, in light of the changing landscape for students, faculty, and lawyers? And how can these standards be framed as drivers of innovation and of creative reform, rather than as maintenance of a model of legal education that is coming under challenge, and from many quarters, as ill-suited to the needs, wants, and exigencies of the profession?
Drilling deep into these questions can assist the Council and its many stakeholders in opening the kind of dialogue that promises to lead, albeit not in the next few months or even couple years, to important change.
More specifically, the ABA Council might think in earnest about the following (which is not to say that such thinking has been entirely lacking within leadership of the Council and ABA Section headquarters:
1. What is the right regulatory approach to teaching faculty? The Council punted entirely on the matter of job security, in the face of criticism and worry. But the matter has not dissolved in importance. What role is there for creativity and flexibility in the construction of a teaching faculty (tenured, long-term contract, and adjunct)? How can the best approaches to academic freedom and faculty governance be married to a vision of high-quality, innovative pedagogy?
2. What is the role of technology in the delivery of legal education and of legal services? The ABA has taken some baby steps toward flexibility with its new distance education standards. But there are large issues which loom nearby. The Council could take a leadership role in thinking about this issue not solely or simply as one of regulation of novel behavior and activity among member schools, but of how best to incentivize and create a space for law schools to think differently (and in some cases radically differently) about information delivery. A thoughtful standard on so-called flipped classrooms might be a bite-size place to start.
3. What should the ABA Section’s regulatory role be with respect to non-core JD programs, including LLM, Master degrees, and certificate programs? Hardly any law dean craves traditional regulation in this space. On the other hand, the development of sensible, informed standards for evaluation — and, yes, even for assistance to law schools — would aid confidence among the public and various stakeholders that law schools are thinking through the implications of these novel programs and are serving important professional objectives.
4. How can the standards help law schools advance the cause of breaking down traditional silos between modalities of professional education? In other words, as the law-technology-business interface replaces the traditional dichotomy of “law practice” and “business performance,” can there be accreditation standards that both absorb this multidisciplinarity and also reward collaborative change? One specific recommendation: Permit, and even encourage, more dual degree programs, cross-listed courses, alternative admissions tests and criteria, joint faculty hiring, and various efforts to build bridges between law schools qua law schools and other professional departments, including business, engineering, medicine, and the social sciences.
5. What is the role of these standards in assessing alternative legal education providers? And by “alternative,” I mean to include non-U.S. law schools, undergraduate institutions, paralegal, for-profits . . . that is, the whole gamut of institutions that are not regular law schools. There is a “looking for the keys under the lampshade” quality to the existing standards. A comprehensive review, consistent with Dept of Educ guidelines, might look at how there could be coherent standards of all relevant accreditation standards to ensure that there are good approaches to legal education wherever such education happens.
Many more questions, and other welcome perspectives. But here is a plea for the Council not to take too long a break from their standards review. There is much more work to be done.
Matt Leichter weighs in thoughtfully on the “JD advantage jobs = lousy jobs” narrative. This is part of the swimming upstream various bloggers — usually, but not always, disaffected, anonymous posters — have been doing as part of a strategy of criticizing law schools for not enabling their students to pursue interesting, remunerative careers.
The wave of change impacting the legal profession and also the business sector has opened up opportunities for new law graduates. The business sector — especially, but not limited to, the technology sector — sees the utility of law-trained professionals in a world in which the intersection among law, business, and technology is increasingly useful. Indeed, the traditional silos between “legal services” and “business services” is dissolving in important ways. And while professional associations of lawyers, and perhaps state bars and the ABA, may be resistant to these changes, disruptive innovation is coming fast and furiously.
So why do Matt Leichter and others want to pound once again on the JD advantage drum?
First, he wants to draw the connection between unemployment rates and JD advantage positions, making the true, but banal, claim that when unemployment rises, “the proportion of graduates finding themselves in JD advantage positions is likely to increase.” Huh? No one is insisting that a law graduate will always or even mostly prefer a JD advantage to a JD required job. It surely depends upon the job. And everyone agrees (right?) that employment in a JD advantage position is preferable to unemployment. So what is so fuzzy about the proposition that, in this difficult job market, law graduates are pursuing eclectic professional opportunities. And why is it just labeled, derisively, “scrounging for work?”
Let’s look at the matter the other way ’round, that is, from the vantage point of employers. Presumably indebted law grads will have higher salary needs than, say, grads with a BA or even a post-graduate master’s degree. Why would non-traditional business sector employers then prefer law grads at this higher salary level if the JD degree was not truly an advantage? Is it the position of these critics that employers, too, are being scammed?
Here is the essential point: It is not NALP and not the law schools who are foisting law grads on unsuspecting employers by insisting that the JD degree is an advantage. It is the employers — and here, to be sure, I am focusing in particular on the business sector — who are seeing this educational path as providing value added. In the data described by Leichter, twenty percent are in “other business settings.” Would more precision in describing these jobs help? Well, surely yes. But the main point is that businesses are in fact hiring these grads and presumably across salary ranges. Different schools, different outcomes. Yes indeed. But I can report that Northwestern Law grads entering the consulting and business/technology fields are seeing salary outcomes that are quite remunerative indeed. And these fall squarely into this so-called “fuzzy” category.
Leichter insists that NALP should reshape the category to include only positions which offer “the graduate opportunities for exercising professional judgment while using their legal skills and knowledge.” Even making the heroic assumption that some smart cookies could come up with a useful measure of this, there remains very good reasons to suppose that employers are making this assessment in the real world by pursuing with alacrity law graduates. Yes, not all of these positions are lucrative and Leichter’s point that the salary at the 25th percentile of JD advantage jobs is not very large (still, the question is compared to what??). But trotting out the trope that the lion’s share of JD advantage jobs in the business sector are in fact positions which do not demand professional judgment or legal knowledge and thus we know that JD grads are “scrounging” and settling for these jobs (having been duped by NALP and deans) is not only tired, but is belied by the market.
Educated, data-driven debate by careful thinkers — and, to be clear, I certainly view Mr. Leichter as in this category, as someone with a valuable perspective and useful things to say on this subject — is necessary in this fuzzy climate. But let’s have this discussion in the context of a larger debate about the changing nature of legal services, the increasingly innovative work that law schools are doing, multidisciplinarity in the law-business-technology space, and economic judgments made by rational college graduates. More data and analysis in this realm would be a welcome relief to the scambloggers’ cranky refrain.
This article from U.S. News “Law Admissions Lowdown” purports to give pro/con arguments for work experience before law school (noting, accurately, that Northwestern Law is unique in putting a heavy thumb on the scale in favor of such experience).
The “con” arguments rely on a number of false premises:
First, the suggestion that law schools have a more or less set number of spots for students with and without work experience is misleading. Law schools, generally speaking, prefer students with work experience. The difference stems from how high is this preference and, moreover, how the school evaluates the tradeoff between high numerical credentials and such experience. The lesson here is that if a student has credentials within the ballpark of one or another law school, s/he would only be helping him/herself by gaining some valuable work experience before enrolling — and perhaps before applying. I confess that it would be great for Northwestern Law is we cornered the market on such students but, in reality, the other law schools are moving rapidly in our direction.
Second, the idea that students, because they will be older when they graduate, will have a harder time transitioning into the working world is belied by the evidence. Legal employers greatly value work experience and they regard the maturity and exposure to the real world as very valuable traits and skills.
Finally, the notion that students will be less adept at doing academic work with a break between college and law school is false — or, I should say more carefully, is false as a generalization about the college/law school gap. Generally speaking, we see the opposite, that is, students can take a deep breath from the academic pressures of undergraduate (or graduate school), gain some perspective, experience, and energy, and return to school with the resolve to do high-level, intense academic work. Again, that has been our experience with our students; and this tracks with other law schools who are increasingly looking to students with work experience.
So, in the end, the “cons” are not really “cons” at all. And certainly the “pros” outweigh any “cons” that might loom!
Criticizing ATL and its legal educ reporters for hyperbole, ad hominem attacks, and other assorted mischief is a habit for those of us on the front lines of this business, and I have this habit as much as anyone.
But, when one of these folks calls it right, credit is due, and listening is the right reaction.
Elie Mystal has a post today on Above the Law that gets to the heart of a real problem, and one which potentially will only grow in significance and impact. Law grads, as he notes, feel increasingly disaffected from their law schools once they graduate, this disaffection being tied not principally (my characterization, not his) to the quality of the education provided, but to the employment outcomes and correlative debt burden suffered by students out in the marketplace with challenges and stress. In the law schools, we call this group (grads of the last seven years or so) “the lost generation.”
The basic problem which undergirds Elie’s righteous and thoughtful post is that law schools too often regard their undemployed or underemployed graduates, more than, say, a year out, as someone else’s problem. Even those law schools that work hard, and creatively, to increase employment opportunities for their current students and newly-minted graduates lack the clear incentives to continue that assistance — and in a tangible way — over the several beginning years of their graduates’ careers. No wonder why young alums perceive their law school as connecting with them only with their hands out for money. They are more right than wrong.
Let’s keep it real and say, again with credit to Elie’s main message in this post that law schools must be proactive and strategic in providing their graduates with assistance over at least the first few years following graduation. Practically, this means (at least): (1) substantial loan repayment assistance (in addition to IBR); (2) assistance which tracks not only public interest/public sector employment, but employment in legal sectors which cannot realistically hold out the promise of helping graduates’ cover their post-graduate debt; (3) meaningful career assistance which continues in the first years following graduation (not “thanks for meeting with us for your 2nd and 3rd year. Good luck!); and (4) professional development initiatives (subsidized principally by the Law School) which assist graduates with developing the most applicable modern skills, skills which will enhance their employment opportunities and point them toward more successful outcomes.
Spare us the “well, law schools will never do this, as it costs them money and it won’t have a perceptible impact on their rankings.” We are doing all four of these things are Northwestern, and we will do more. There are certainly other law schools who are engaging with their young alumni in similarly, if not more, creative ways as well. The costs of substantial action are high, and some law schools will be better resourced (of course) than others to undertake these initiatives. But, folks, let’s move it much higher up our priority list. The time has come to do something meaningful with this lost generation. It’s good for the law schools; and it’s the right thing to do.
So, hats off to Elie (at least until a future irritating post by him!) for making an essential and powerful point about the connection between the applicant decline, young alumni anger, and the flaws in the current structure of legal education.